Affirmative action

Volokh, Eugene VOLOKH at
Fri Mar 2 10:23:42 PST 2001

        I think Prof. Henderson should ask her question of someone who
actually wants to defend the proposition that she's questioning.  I'm
unaware of anyone on this thread, or for that matter anyone in the history
of this discussion list, who has defended that proposition (that it is
"race-conscious hiring when a person of color gets an offer and not race
conscious hiring when a white person gets an offer").

                My claim was that (1) a program such as the one that Leslie
Goldstein describes -- in which "when a job search produces a minority
candidate who makes the short list of interviewees (generally the top 3-4)
but who is not the final first choice, [the department offers] a second job
to the minority candidate" -- is race-conscious, and (2) that a program in
which the decision is made based on factors other than race (and I'm
certainly not wedded to any particular set of factors) is not

                That seems to me a pretty straightforward claim, both as a
logical matter and under the Court's race classifications doctrine.


Lynne Henderson write:

> How is it race-conscious hiring when a person of color gets an offer and
> not race conscious hiring when a white person gets an offer?  That is, why
> is the unspoken modifier always "white"?  That is, the underlying
> assumption is candidates will be white and if different ethnicity is taken
> into account, it  immediately becomes "race-conscious hiring?"
> Lynne
>  -----Original Message-----
> From: Discussion list for con law professors
> [mailto:CONLAWPROF at]On Behalf Of Volokh, Eugene
> Sent: Friday, March 02, 2001 1:23 AM
> Subject: Re: Affirmative action
>                       Hmm -- these seem like interesting speculations, but
> are they really sufficient under Croson to justify a race-conscious hiring
> process such as the one Leslie Goldstein describes?  They don't strike me
> as particularly likely, but even if one finds them plausible, it seems to
> me that one needs more than just some plausible speculation to justify a
> racially preferential remedy.
>                       Also, I'm curious:  Which schools are these in which
> "minority LSAT scores are strongly negatively correlated with academic
> performance"?  I confess I find this quite surprising -- I'd love to hear
> more details.
>                       Eugene
>       Yvette Barksdale writes:
>       -----Original Message-----
>       From:   Barksdale, Yvette [SMTP:7barksda at JMLS.EDU]
>       Sent:   Thursday, March 01, 2001 8:52 PM
>       To:     CONLAWPROF at
>       Subject:        Re: Affirmative action
>       I  think these  statistics   (example - white women and men of color
> start
>       at "somewhat more prestigious schools" than white men)  are
> misleading, and
>       not helpful in determining whether  individual hiring processes
> reflect
>       bias.
>       First, these statistics include only hirees, and tell us nothing
> about those
>       who were rejected.  Were their credentials better or worse than the
> hirees?
>       What were the reasons for  their rejection? Was racial bias a
> factor? For
>       example, my observation is similar to Leslie's - hiring candidates
> of color
>       at majority white institutions is very difficult outside of an
> "affirmative
>       action or diversity"  mode, because  white faculty's mental picture
> of a
>       "normal" faculty hire is almost always white (and not just white, a
> white
>       clone of themselves)  Accordingly, minority applicants in this
> "normal mode"
>       often get rejected as "not what we're looking for this year."
> Nevertheless,
>       such a racially exclusionary process would  be perfectly consistent
> with a
>       statistic that showed on average the  ultimate black male hiree  had
>       somewhat lower credentials than white male "normal" hirees, even
> though
>       many better qualified minority applicants had been rejected along
> the way
>       (both in and out of diversity mode).
>       Second, these aggregate statistics  obscure wide variations among
> schools.
>       LSAT scores are an analagous example. Nationally, LSAT scores are
> weakly
>       positively  correlated with law school performance for students of
> color.
>       However, this national statistic hides wide variations among
> individual
>       schools. In some schools,  minority student LSAT scores are very
> strongly
>       correlated with academic performance. In other schools, minority
> LSAT scores
>       are strongly negatively correlated with academic performance - the
> higher
>       the LSAT score, the worse the minority students do.    National LSAT
> scores
>       say little or nothing about what's going on at your school.
> Similarly,
>       saying "on average  black men candidates get better jobs than
> comparable
>       white men " says little about what occurs in individual schools.
>       Just as statistics alone rarely prove discrimination, they also
> rarely
>       disprove discrimination.
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